Schuman v. Sanderson

• Decision Date: 03 December 1904
• Citation: 83 S.W. 940,73 Ark. 187
• Parties: SCHUMAN v. SANDERSON
• Court: Arkansas Supreme Court

83 S.W. 940

73 Ark. 187

SCHUMAN v. SANDERSON

Supreme Court of Arkansas

December 3, 1904

Appeal from Little River Circuit Court, CHAS. W. SMITH, Judge, on exchange of circuits.

Affirmed.

Judgment affirmed.

Webber & Webber, Scott & Head, and Dan W. Jones, for appellants.

The evidence does not support the judgment. Amendment No. 2 to the Constitution, fixing the qualifications of voters, does not make a poll tax receipt the sole evidence of payment of said tax, but allows such fact to be established by "other evidence." See Act Jan. 12, 1893. Cf. Act April 10, 1893; Sand. & H. Dig. §§ 2605-12 as amended March 18, 1895. As to manner of casting ballots and conducting elections, see Sand. & H. Dig. §§ 2650 2652. These provisions are mandatory. 61 Ark. 247, 254-5; 68 Ark. 555; 69 Ark. 501. "In habitant" is synonymous with "resident." 70 Ark. 545-548; McCrary, Elect. § 199. The "incompetency, inefficiency and reckless disregard of the essential requirements of the law" by the election judges vitiate the election. McCrary, Elect. § 199; 41 Ark. 11. The court erred in holding that the election held by Moore in Winthrop precinct was the legal election. Sand. & H. Dig. §§ 2624, 2626, 2622. The return of the ballots to the county election commissioners for safe keeping, etc., was regular and proper. Cf. Sand. & H. Dig. §§ 2660-2671, 947, 949; 32 Ark. 553, 560; 53 N.W. 944; 60 N.W. 676.

J. T Cowling, W. H. Arnold, John N. Cook and L. A. Byrne, for appellees.

When the record is incomplete, a presumption of sufficiency of the evidence attaches. 54 Ark. 160; 44 Ark. 76; 38 Ark. 102; 53 Ark. 254; s. c. 43 S.W. 422. Two commissioners could not act without the presence of or notice to all. 52 Ark. 511; 54 Ark. 58. The order changing Red River Precinct No. 2 polling place was never legally passed. Sand. & H. Dig. §§ 2678-9. The payments of poll taxes by Orton were not illegal. 68 Ark. 558. The Richlands box was properly rejected. 10 Am. & Eng. Enc. Law (2d Ed.), 774; 61 Ark. 247; 53 Ark. 161; 41 Ark. 111. There is no showing made upon which the Ashdown boxes should have been rejected. McCrary, Elect. 523; 10 Am. & Eng. Enc. Law (2d Ed.), 774. As to poll taxes paid by Orton, see 68 Ark. 555; 69 Ark. 501.

OPINION

HILL, C. J.

On the 3d of September, 1901, a majority of the electors of Little River County voted in favor of a removal of the county seat from Richmond, and, no place having received the requisite votes, another election was ordered for December 3, 1901, to settle whether Rocky Comfort (now called Foreman) or Ashdown should be the county seat. On the face of the returns Rocky Comfort received a majority, and a contest was instituted by citizens representing Ashdown. The judgment of the county court was in favor of Rocky Comfort, and an appeal was taken to the circuit court, where the case was tried de novo. The case was heard by the circuit judge on the evidence, which was very voluminous, and consisted entirely of depositions, with the exception of two or three witnesses who orally testified before the judge. The result of the hearing before the circuit judge was a judgment declaring Ashdown had carried by 138 majority.

1. The first question for consideration is the effect to be given to the findings of fact by the circuit judge.

In Davis v. Moore, 70 Ark. 240, 67 S.W. 311 this court held that section 2698, Sandels & Hill's Digest, providing that in election contests the evidence is to be taken on depositions, and the court, shall dtermine the same as a summary proceeding, is mandatory, and costs incurred in a trial otherwise are not taxable.

It is insisted by appellants, as the hearing in these cases is upon depositions, and not with the witnesses personally present before the court, that the rule in chancery cases where the law contemplates all trials shall be had on depositions should prevail, instead of the rule giving to the finding of a circuit judge the same conclusiveness as the verdict of a jury. It is earnestly urged that the reason for the rule giving conclusive effect to the finding of a circuit judge or jury on a disputed question of fact ceases to apply in these special proceedings heard on depositions, and that therefore the rule should cease, and that the finding of the circuit judge should have only persuasive effect on this appeal.

The statute referred to, which was construed in Davis v. Moore, supra, has been the law since 1875, long before Powell v. Holman, 50 Ark. 85, 6 S.W. 505, and Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723, were decided. In Powell v. Holman the court held that the circuit judge's findings of fact in a contested election case had the effect of special findings of a jury. In the case of Jones v. Glidewell, Chief Justice Cockrill, speaking for this court, said: "It is not the practice of appellate tribunals, and has never been the practice of this court, to enter anew into the investigation of issues of fact which have been tried in a law case by a circuit judge upon conflicting testimony. When a jury is waived by the parties, and the issues of fact are tried before the judge, his findings of fact are as conclusive on appeal as the verdict of a jury; and when the law makes the judge the trier of facts in cases to which the constitutional right of trial by jury does not extend, the same presumption attends his findings. Corley v. State, 50 Ark. 305, 7 S.W. 255. The reasons which sustain the rule in the one case exist as well in the other. The statute has not established a different rule for election cases, and there is nothing in the policy of the law to warrant the courts in doing so. On the contrary, the rule was followed in Powell v. Holman, 50 Ark. 85, 6 S.W. 505, and in Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; and in Patton v. Coates, 41 Ark. 111, the cause was remanded to the circuit court for a new trial, whereas, if the court were at liberty to review the facts as in an equity case, judgment would have been entered here in accordance with this court's conclusion upon the facts. But, while we will not enter upon an investigation to ascertain where the weight or preponderance of the testimony lies, it is our province to determine whether a given finding or verdict has testimony to sustain it; and where there is no conflict in the evidence, or the facts are specially found, the conclusion of law or judgment to be deduced therefrom is purely a question of law to be finally determined by this court." In Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680, this court said: "As there was evidence to support the finding of the circuit court that the judges of the election in Bragg township were guilty of fraud, that finding must stand. Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723."

Thus it is seen that by authority and practice it is thoroughly imbedded in the jurisprudence of this State that in election contests the same effect must be given the findings of the judge as to the findings of a jury on conflicting evidence.

The fact that the evidence is written, instead of given personally before the judge, has never controlled the rule in law cases, and it has been extended even to a written agreed statement of facts. Marshall v. Dossett, 57 Ark. 93, 20 S.W. 810; Robson v. Tomlinson, 54 Ark. 229, 15 S.W. 456. In chancery cases it has been frequently said that, as the appellate court has the same record before it in the same form of evidence that the chancellor had, no reason existed why his decisions should have more than a persuasive weight. Kelly v. Carter, 55 Ark. 112, 17 S.W. 706; Chapman v. Liggett, 41 Ark. 292. This is one reason--and a sufficient one--for holding in chancery cases that there is no conclusiveness in the chancellor's finding; but the deeper reason is that in chancery cases the trial here is de novo, while in law cases it is only a trial here to ascertain if error has been committed.

These questions for review from law courts are only questions of law, and they must be raised and ruled on in the trial court before review here. There is no trial de novo in such cases, as in chancery appeals. The only question presented in appeals in law cases on the facts is whether the evidence is legally sufficient to sustain the verdict or finding. Therefore the inquiry in this case is merely whether there is in each instance evidence legally sufficient to sustain the finding, and the finding must be sustained if there is such evidence, notwithstanding a decided preponderance may be against it.

The declarations of law made by the court are in full accord with the decisions of this court in the following election contest cases, viz.: Patton v. Coates, 41 Ark. 111; Powell v. Holman, 50 Ark. 85, 6 S.W. 505; Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723; Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680; Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652; and Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272.

Therefore it is made certain that in weighing the evidence the circuit judge had a full appreciation of the rules controlling each proposition involved.

2. The return from Sanderson...